James O'Rourke v. TJX (2011)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (Nos.133, 143)

FACTS

On May 18, 2009, the plaintiff, James O'Rourke, filed a four-count substitute complaint against the defendants, The TJX Companies, Inc., Hawley Construction Corporation, Hawley Management Co., Inc. and Unlimited Systems, LLC. This action arises out of injuries and losses allegedly sustained by the plaintiff on July 30, 2008, when he tripped and fell in front of a Homegoods store.   The TJX Companies, Inc. was the lessor of that store, Hawley Management Co., Inc. was the store's owner and exclusive manager, Hawley Construction Corporation was the general contractor performing renovations and repairs on the store and Unlimited Systems, LLC was the subcontractor executing those renovations and repairs.

In count four, the plaintiff alleges that Unlimited Systems, LLC was negligent in (1) performing construction activity on the store's facade that concealed the curb, (2) making it difficult to see by causing poor lighting, dirt, dust and construction debris, and (3) allowing the defective and dangerous conditions to exist near a commonly used entrance area.   In count one, the plaintiff alleges that The TJX Companies, Inc. was negligent in allowing this dangerous construction activity and failing to adequately train its employees regarding allowing patrons to walk at or near the construction site.   In count two, the plaintiff alleges that Hawley Management Co., Inc. was also negligent in allowing the construction activity, and in failing to properly clean the construction area and ensure removal of hazardous conditions.   The plaintiff further alleges that the defendants knew or should have known that a patron could be injured as a result of these conditions and yet failed to warn of, or protect from, the defect.

On December 1, 2010, Unlimited Systems moved for summary judgment.   The motion was accompanied by a memorandum of law.   On December 28, 2010, the plaintiff filed a memorandum in opposition to that motion.   Unlimited Systems filed a memorandum in reply on January 5, 2011.   This matter was heard at the short calendar on February 7, 2011.   On January 31, 2011, The TJX Companies and Hawley Management Co. likewise moved for summary judgment.   On February 24, 2011, the plaintiff filed a memorandum in opposition to that motion for summary judgment.   This matter was heard at the short calendar on March 14, 2011.¹

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

In their memoranda in support of their respective motions for summary judgment, the defendants assert that the evidence makes clear that the plaintiff fell because he was not looking at the ground in front of him, and that construction dust and debris were in no way a cause of his fall.   As a result, the defendants argue, they breached no duty owed to the plaintiff.   Moreover, the defendants argue that they could not have foreseen that construction workers on scaffolding would cause a patron to become so distracted as to result in a trip and fall and, therefore, their actions were not the proximate cause of the plaintiff's injury.   As evidence of these assertions, the defendants submitted the following:  (1) excerpts from the depositions of Matthew Paskov, (2) excerpts from the plaintiff's deposition, and (3) a copy of Unlimited System's subcontracting agreement with Hawley Construction Corporation.   Unlimited Systems, in its supplemental memorandum in support of the motion, further argues that summary judgment is appropriate because the plaintiff has presented no evidence that the dangerous conditions alleged in the complaint ever existed.

The plaintiff argues that the motion should be denied on the ground that there remains a genuine issue of material fact as to whether the defendants breached their duty by creating or maintaining a dangerous tripping hazard and allowing or engaging in work that constituted a distraction to pedestrians.   The plaintiff further argues that Unlimited Systems breached its duty of care by violating its own safety policies.   The plaintiff submitted the following evidence in support of his argument:  (1) a copy of Unlimited System's safety notices and procedures, (2) excerpts from the plaintiff's own deposition and (3) excerpts from the deposition of Matthew Paskov.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).  “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).  “Although the issue of causation generally is a question for the trier of fact ․ the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation.”  (Internal quotation marks omitted.)  Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).

The defendants, in their memoranda in support of their motions for summary judgment, acknowledge that they did, in fact, owe a duty of care to the plaintiff.   The existence of a duty not being in dispute, there remain only the questions of fact as to breach and causation.   It is well established that “[t]he party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Gould v. Mellick & Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003).  “The courts hold the movant to a strict standard.   To satisfy [its] burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  (Internal quotation marks omitted.)  Witt v. St. Vincent's Medical Center, 252 Conn. 363, 372–73 n.7, 746 A.2d 753 (2000).

In the present case, the deposition excerpts submitted by the defendants include multiple statements by the plaintiff that he was distracted by the construction work overhead.  (Plaintiff's deposition, pp. 11–13.)   The deposition excerpts also include testimony by the plaintiff in which he likens the opening in the scaffolding leading to the store's entrance to a tunnel.   (Plaintiff's deposition, p. 11.)   Although the defendants argue that the plaintiff's position is attenuated and that they could not have foreseen that a patron would become so distracted by the workers that he would trip and be injured, this is a question appropriately decided by the trier of fact as reasonable minds could disagree.   An issue of fact remains as to whether the defendants violated their duty of care by creating or allowing poor lighting conditions over a raised curb that, together with distractions overhead, could cause a foreseeable tripping hazard.

Moreover, Unlimited Systems' contention that its motion for summary judgment must be granted because the plaintiff failed to produce evidence showing the existence of dangerous conditions is without merit.   The defendants have not met their burden of proving that no genuine issue of material fact exists and, therefore, the plaintiff has no obligation to submit evidence establishing that such issues remain.  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.   Accordingly, the court denies these motions for summary judgment.

Cosgrove, J.

FOOTNOTES

FN1. The three defendants moving for summary judgment—namely, Unlimited Systems, LLC, Hawley Management Co., Inc. and The TJX Companies, Inc.—will be collectively referred to herein as the defendants..  FN1. The three defendants moving for summary judgment—namely, Unlimited Systems, LLC, Hawley Management Co., Inc. and The TJX Companies, Inc.—will be collectively referred to herein as the defendants.

Cosgrove, Emmet L., J.